Private Entity Liability Under Section 1983
A private entity can be liable under 1983 when the execution of its policies or customs causes the plaintiff's alleged constitutional deprivation. Id. (citing Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38).
In order for a policy to exist, it must be the result of "a deliberate choice to follow a course of action . . . from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 1300, 89 L. Ed. 2d 452 (1986).
"Alternatively, conduct may be held to constitute a custom or practice, even though it was never officially approved by an appropriate decisionmaker, if it 'is so widespread as to have the force of law,'" Casey, 13 F. Supp.2d at 245 (citing Bryan County Comm'rs, 520 U.S. at 404, 117 S.Ct. at 1388), or it is attributable to the entity." Roma Construction Co. v. a Russo, 96 F.3d 566, 575 (1st Cir. 1996) (citing Bordanaro, 871 F.2d at 1156).
That is, "it must be so well-settled and widespread that the policymaking officials of the entity can be said to have either actual or constructive knowledge of it yet did nothing to end the practice." Id. (citing Bordanaro, 871 F.2d at 1156).
Constructive knowledge "may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of their official responsibilities the entity policymakers should have known of them." Bordanaro, 871 F.2d at 1157.
However, there must be a "direct causal link" between an entity's policy or custom and the alleged constitutional violation. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989).
Thus, a plaintiff must also prove that "the custom or practice must have been the cause of and the moving force behind the deprivation of constitutional rights." Roma Construction Co., 96 F.3d at 575 (citing Bordanaro, 871 F.2d at 1156).
As recently articulated by the United States Supreme Court "it is not enough for a 1983 plaintiff merely to identify conduct properly attributable to the municipality.
The plaintiff must also demonstrate that, through its deliberate conduct, the entity was the 'moving force' behind the alleged injury.
That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. . . .
Proof that a municipality's legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably.
Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains." Bryan County Comm'rs, 520 U.S. at 404-05, 117 S.Ct. 1388-89.